Buddy Kindle v. United Services Automobile Association
2011 Tex. App. LEXIS 10131
| Tex. App. | 2011Background
- Kindle sued USAA and related USAA entities; trial court granted USAA’s traditional and no-evidence summary judgments on March 8, 2011.
- Kindle sought a free record on appeal, contending he was indigent; he filed a notice of appeal on April 5, 2011 and a pro se motion to proceed in forma pauperis on April 21, 2011.
- Rule 20.1 requires an affidavit of indigence to be filed with or before the notice of appeal, and Rule 20.1(b) prescribes detailed information for the affidavit.
- Kindle’s initial motion stated he was unable to pay due to unemployment and disability, requesting absence of costs, but it did not comply with Rule 20.1(b).
- USAA timely contested Kindle’s indigence motion, arguing noncompliance and untimeliness; a hearing was held on May 10, 2011.
- The trial court denied Kindle’s motion for lack of timeliness and noncompliance, and entered an order denying a free record; Kindle appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did the trial court abuse its discretion in denying indigence and a free record? | Kindle argues he is indigent and entitled to a free record for the merits. | USAA contends the motion failed to comply with Rule 20.1 and was untimely. | No abuse; indigence not established under the rules. |
| Was Kindle’s affidavit of indigence timely and compliant with Rule 20.1(b)? | Kindle contends timing, discovery, and disability yielded entitlement. | USAA contends the affidavit lacked required information and was not timely filed. | Noncompliance and untimeliness; trial court did not err. |
| Were the statutory prerequisites under Section 13.003 required for issuing a free record? | Kindle seeks record without cost under §13.003 as underpinning authority. | USAA relies on absence of required findings and noncompliance under §13.003. | The trial court’s lack of §13.003 findings and the indigence pleading preserve no reversal; the decision stands. |
Key Cases Cited
- Few v. Few, 271 S.W.3d 341 (Tex. App.—El Paso 2008) (indigent appeal requires proper Rule 20.1 filing)
- Arevalo v. Millan, 983 S.W.2d 803 (Tex. App.—Houston [1st Dist.] 1998) (procedural indigency standards for non-attorney litigants)
- In re D.T.K., No. 05-10-01613-CV, 2011 WL 6047104 (Tex. App.—Dallas 2011) (indigence standards and affidavit requirements)
- Rhodes v. Honda, 246 S.W.3d 353 (Tex. App.—Texarkana 2008) (section 13.003 prerequisites for free record; findings required)
- Sprowl v. Payne, 236 S.W.3d 786 (Tex. 2007) (strict compliance with Rule 20.1 not always required for dismissal)
- Higgins v. Randall County Sheriff’s Office, 193 S.W.3d 898 (Tex. 2006) (Rule 20.1 compliance considerations)
- Schlapper v. Forest, 272 S.W.3d 676 (Tex. App.—Austin 2008) (preservation of error where Findings under §13.003 absent)